The Price of Free Speech: Two Cases of Restitution

January 21, 2015 by Steven Wishnia

Prosecutors getting people arrested in political protests to pay restitution is rare—but it has happened at least twice in the last three years. In November 2012, an Ohio woman who’d blocked access to a fracking-wastewater dump by chaining her hands into 55-gallon barrels of cement agreed to pay about $1,500 as part of a plea bargain. And last January, a federal judge in Tennessee ordered three Catholic pacifists to pay $52,953, after they’d marred the walls of a nuclear-weapons facility in Oak Ridge with human blood and peace graffiti and been convicted of two felony charges for it.

In the Ohio case, Madeline ffitch of Appalachia Resist, then 31, was initially charged with “inducing panic,” a felony, after she blocked the road into a site near Athens where toxic fracking wastewater is injected into the ground. The county prosecutor offered to reduce the charge to aggravated trespassing, a misdemeanor, if she would pay $3,600 to cover the cost of police and emergency response, including the state Highway Patrol flying in a special unit to break up the barrels. She agreed to plead guilty to that, and her lawyers negotiated the amount of restitution down to about $1,500, split among three agencies.

The trespassing charge was to be dismissed after she completed a diversion program, also part of the plea deal. “I believe that the inducing panic statute is unconstitutionally vague,” ffitch, a short-story writer, told supporters outside the courthouse after her plea. “I believe that in this case, the first case of direct action in southeast Ohio against injection wells, this vague statute was used to make an example of me, and to attempt to deter other protesters…. If the prosecutor thinks that grossly overcharging for civil disobedience is going to stop the strong tide of resistance in Appalachian Ohio, if he thinks that future anti-fracking protesters will be deterred by such intimidation tactics, he is wrong.”

The protest got her photo included in a 2013 FBI Joint Terrorism Task Force report on “environmental extremists” in Pennsylvania and eastern Ohio, obtained by the Columbus Free Press last year. That report said such extremists “believe that criminal actions are necessary to end perceived exploitation of the natural resources and ecosystems in the United States,” and lumped sit-ins by Appalachia Resist and Earth First together with alleged pipe bombs found at fracking sites.

In the Oak Ridge case, the three defendants did commit property damage—cutting through a chain-link fence at the Y-12 nuclear-weapons facility, throwing blood on a storehouse for bomb-grade uranium, and painting slogans like “Peace Not War” and “Plowshares Please Isaiah”—but were also charged for the cost of the security response, well beyond the price of repairing the damages.

The three defendants, who called themselves Transform Now Plowshares, were convicted of felony charges of destroying U.S. property and attempting to injure national defense premises. Greg Boertje-Obed and Michael Walli got five years in prison, and Sister Megan Rice, an 83-year-old nun, got three years.

At their sentencing hearing in January 2014, a Y-12 security official, retired Brigadier General Rodney L. Johnson, said the $52,953 cost included materials and labor for six painters, five carpenters, two truck drivers, a planner and supervisor, and photographers and videographers. They had to document the damage and inspect 19 miles of fence around the facility, repair fences and sensors, clean the graffiti off with steam, and clean up the blood while wearing masks, shields, and coveralls, as well as putting out booms to contain toxic spills. The security contractor, he added, spent 29 hours and about $13,000 having three or four dogs sweep the plant, and it also had to pay workers overtime.

The National Nuclear Security Administration estimated the total cost of beefing up security after the break-in at $15 million, according to a statement it gave the Knoxville News-Sentinel in 2013. Those costs included bolstering the “PIDAS” (perimeter intrusion, detection, and assessment system) by installing additional concertina-wire and animal fencing and more sensors and cameras. The federal government was obviously perturbed by such a security breach at a facility nicknamed the “Fort Knox of uranium.”

“The defendants’ actions caused a massive disruption to the operations at Y-12,” Assistant U.S. Attorney Jeffrey E. Theodore wrote in a pre-sentencing memo. “The defendants’ intrusion resulted in a full ‘stand-down’ of operations for fifteen days where all nuclear operations at the site were suspended.” WSI, the private contractor hired for security, was fired.

The defendants insisted their actions were justified by moral and international law, but did not resist their punishment. Nuclear weapons are a “humanly constructed horrific monstrosity, an entity which has, effectively unimpeded, evolved into risks of perilous portent to the very existence of this sacred Planet and life as we have known it,” Rice told the judge at her sentencing. “Please have no leniency with me. To remain in prison for the rest of my life would be the greatest honor for me.”

They appealed their conviction last August, on the grounds that simply defacing government property did not qualify as sabotage, as the prosecution had “presented no evidence that the Defendants inhibited or could have inhibited our nation’s ability to respond to an attack,” and that the prosecutor had prejudiced the jury by mentioning the 9/11 attacks. The appeal also argues that the actual cost of the repairs was about $8,500, not the $53,000 assessed for restitution.

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